Scheduling conference reveals ongoing evidence delays in Walmart mass shooting case

Any hopes of setting a trial date were put on hold again after a state district court judge learned that prosecutors are still working to turn over evidence to the Walmart mass shooting gunman's legal team.

District Judge Sam Medrano announced Monday afternoon that he's going to be forced to wait to set a trial date until prosecutors turn over all discovery, which is the legal term for evidence. Another scheduling hearing could be set for January 2024.

The three-attorney defense team expressed frustration over the discovery process and warned the delay could push the capital murder trial to 2025.

"We don't have control of discovery. The narrative is DA's always blaming the defense for not wanting to go to trial, not being ready. We have an obligation to be ready, but they (state) have an obligation to produce discovery and do it timely," defense attorney Joe Spencer said after the hearing. "Why it is taking over four years? We still don't have anywhere near the discovery we should have. Nothing has kept the state of Texas from producing that discovery for the last four years. We have been waiting for it."

Medrano, of the 409th District Court, seemed surprised that the El Paso District Attorney's Office was still collecting police reports and combing through other evidence.

"Four years later, you are still receiving (evidence)?" Medrano asked El Paso District Attorney Bill Hicks.

Hicks said yes, and told the judge he is turning over evidence as he receives it so the defense team could review immediately. He said he is confident all evidence will be turned over to the defense by at least December.

"Very confident," Hicks said after the hearing. "I think we will do it before December. I have a goal of doing this in October. December is an outside date."

He added, "We are still on track. It's just a matter of the judge, very reasonably so, wants to make sure that when he sets that trial date it is going to be a good solid date. He really can't do that until he is comfortable that the hard discovery is done. So that is on us (DA's Office). We got to get that discovery done. I am very confident we will get that done."

Defendant Patrick Crusius is facing the death penalty in the Aug. 3, 2019 mass shooting. The gunman, a white supremacist, told investigators he drove to El Paso to target Hispanics and Mexican immigrants. He's been convicted of hate crimes in federal court stemming from the massacre.

The scheduling conference Monday afternoon came more than four years since the gunman was indicted Sept. 12, 2019, in state court for the mass shooting at an East El Paso Walmart, which resulted in the death of 23 people and injured dozens more.

While the state case remains pending with no trial date in sight, the federal case reached its conclusion with Crusius being sentenced earlier this year to 90 consecutive life sentences and ordered Monday, Sept. 25, to pay more than $5 million of restitution to the victims and their families.

The U.S. Attorney's Office turned over all evidence to Spencer and his defense team within about two years of the shooting, Spencer said. He questioned the motives as to why it has taken more than four years for the state to even turn over half of the evidence.

"The state of Texas is more entitled to what is politically correct than what is judicially correct," Spencer said. "The federal government doesn't deal with politics. I will not allow the state of Texas to further victimize the victims or use the victims as political pawns because of reelection next year."

Hicks is the third district attorney to handle the case. Long-time District Attorney Jaime Esparza, who did not seek reelection in 2020, and Yvonne Rosales, who resigned from the position amid controversy over her administration's handling of cases, including the Walmart case, oversaw the case before Hicks was appointed to the seat. Hicks was appointed to the seat by Texas Gov. Greg Abbott.

Hicks denied any political motives were behind the delays in the case.

"The death penalty was filed in 2019 under Mr. Esparza and it was upheld in Ms. Rosales' term," Hicks said. "I haven't done anything different. There is nothing political about this. This is not about politics. This isn't about being Republican or Democrat. This is about seeking justice for the people of El Paso. There is nothing political about that."

Hicks has not officially announced his bid for the district attorney seat in the 2024 elections.

While no trial date was set at the hearing, several key issues were brought up by defense lawyers, including a possible violation by the DA's Office over a jailhouse phone call recording between the gunman and his defense attorneys.

The recording was wrongfully given to state prosecutors as part of jailhouse phones being turned over in the case, Hicks said.

Anyone in the DA's Office who listened to the recording violated attorney-client privilege, Spencer said.

"I have a huge concern," Spencer said. "There was a direct order explicitly given to the sheriff's office that these are confidential attorney-client communications, do not give them to anybody and they did. When the DA got it they should have known, 'This is attorney-client privilege; we can't listen to this.'"

Hicks said only one person in his office heard the recording. He said defense attorneys were notified immediately and his office turned over the recording. The person who listened to it is "isolated from the case."

"I don't even know who was on that call," Hicks said. "I haven't listened to it. I don't know anything about it. I just know it was his (gunman) attorney's office. It was uploaded to our system as one of the many jail phone calls that we get. As we were going through our discovery process, we discovered that phone call. We immediately stopped, did not listen to the contents of the call, alerted the defense, 'Hey, we have this call. We'll isolate it. We won't listen to it and we'll give you a copy of it.' They asked that we destroy it. We've destroyed our copy; we've removed it from our system."

Spencer also allegedly said the DA's Office turned over evidence on discs which had a virus or were corrupted.

Hicks said defense attorneys never notified his team of the virus or corrupted files.

In the end, the nearly hourlong scheduling conference ended with no trial date or future hearings scheduled — only a possible hearing being planned in January.

The defense says negligence in turning over evidence could prolong legal proceedings for 3 years

Spencer expressed frustration over the improper labeling and naming of evidence provided by the District Attorney's office.

Spencer added that negligence in turning over evidence can result in mistrials and retrials, leading to prolonged legal proceedings that can extend for three or more years.

- Aaron Martinez

Patrick Crusius does not appear in person at hearing

The admitted white supremacist did not appear in person at the hearing.

- Omar Ornelas

Defense accuses state prosecutors of slow evidence process

Spencer raised serious concerns about the state's process in turning over the evidence, comparing it unfavorably to federal prosecutors. Spencer alleges the District Attorney's office has been lagging in turning over crucial evidence, citing issues with the format, potential viruses and corrupted files.

"They knew it was corrupted and they still gave it to us," Spencer stated.

- Aaron Martinez

El Paso DA: Evidence expected to be turned over to defense by end of December

El Paso District Attorney Bill Hicks said during the hearing most of the discovery, also known as evidence, will be turned over to the defense team by the end of December.

- Aaron Martinez

Patrick Crusius ordered to pay $5M in restitution to victims

The federal case against the gunman came to a close Monday, Sept. 25, after a judge ordered him to pay more than $5.5 million in restitution to the victims and their families, court documents state.

Court documents do not state how many people filed requesting to be paid restitution. The restitution is being paid for the financial losses the victims and their families suffered due to the gunman's actions.

The restitution amount was agreed on by both defense lawyers and federal prosecutors, a joint motion filed by both sides states.  U.S. District Judge David Guaderrama approved the motion.

More: Walmart mass shooting survivor suffers, waits for help to restart life in El Paso

The restitution comes months after the gunman pleaded guilty Feb. 9 to 90 federal charges. He was sentenced on July 7 to 90 consecutive life sentences.

Guaderrama, who presided over the federal trial, ordered the gunman to serve his federal sentence at the ADX Florence supermax federal prison near Florence, Colorado.

However, the gunman remains in the Downtown El Paso County Jail in state custody as he awaits trial in the state's case.

- Aaron Martinez

Aaron Martinez may be reached at amartinez1@elpasotimes.com or on Twitter @AMartinezEPT.

This article originally appeared on El Paso Times: El Paso Walmart shooting update: gunman does not appear at hearing